rights of a riparian ownerUNITED STATES v

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Riparian Rights
(Riparian Rights)

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Riparian Rights of a Riparian Owner
UNITED STATES v. RIVER ROUGE IMPROVEMENT CO

We are of opinion that the giving of these instructions and the refusal of these requests involved prejudicial error. It is well settled that in the absence of a controlling local law otherwise limiting the rights of a riparian owner upon a navigable river, Shively v. Bowlby, 152 U.S. 1, 40 , 14 S. Ct. 548, he has, in addition to the rights common to the public a property right, incident to his ownership of the bank, of access from the front of his land to the navigable part of the stream, and when not forbidden by public law may construct landings, wharves or piers for this purpose. Dutton v. Strong, 1 Black, 23; Railroad Co. v. Schurmeier, 7 Wall. 272, 289; Yates v. Milwaukee, 10 Wall. 497, 504; Transportation Co. v. Parkersburg, 107 U.S. 691, 699 , 2 S. Ct. 732; St. Louis v. Rutz, 138 U.S. 226, 246 , 11 S. Ct. 337; Illinois Central Railroad v. Illinois, 146 U.S. 387, 445 , 13 S. Ct. 110; Weems Steamboat Co. v. Peoples' Co., 214 U.S. 345, 355 , 29 S. Ct. 661, 16 Ann. Cas. 1222; United States v. Chandler-Dunbar Co., 229 U.S. 53, 70 , 33 S. Ct. 667. There is no limitation upon this right of a riparian owner in the laws of Michigan. On the contrary it was recognized in Lorman v. Benson, 8 Mich. 18, 25, 77 Am. Dec. 435, that the rights of riparian owners must be determined by the common law so far as applicable to the local situation; and in Ryan v. Brown, 18 Mich. 196, 210, 100 Am. Dec. 154, it was said that:

'If wharves and similar conveniences were not allowed upon our large [269 U.S. 411, 419] streams, the shipping business would become practically worthless. It can never be unlawful for a land owner to make such wharves and landlings as will accommodate all vessels ordinarily using the stream, unless there are some exceptional circumstances, as narrows, bends, or the like, which may in particular cases render his structures improper.'

This right of a riparian owner, it is true, is subordinate to the public right of navigation, and subject to the general rules and regulations imposed for the protection of such public right. And it is of no avail against the exercise of the absolute power of Congress over the improvement of navigable rivers, but must suffer the consequences of the improvement of navigation, if Congress determines that its continuance is detrimental to the public interest in the navigation of the river. United States v. Chandler-Dunbar Co., supra, 62, 70 (33 S. Ct. 667).

The right of the United States in the navigable waters within the several States is, however, 'limited to the control thereof for purposes of navigation.' Port of Seattle v. Oregon Railroad, 255 U.S. 56, 63 , 41 S. Ct. 237, 239 (65 L. Ed. 500). And while Congress, in the exercise of this power, may adopt, in its judgment, any means having some positive relation to the control of navigation and not otherwise inconsistent with the Constitution, United States v. Chandler-Dunbar Co., supra, 62 (33 S. Ct. 667), it may not arbitrarily destroy or impair the rights of riparian owners by legislation which has no real or substantial relation to the control of navigation or appropriateness to that end. In Yates v. Milwaukee, supra, 504, it was said in reference to the right of a riparian owner of a navigable stream:

'This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired.'

This language was cited with approval in Illinois Central Railroad v. Illinois, supra, 445 (13 S. Ct. 110). [269 U.S. 411, 420] Considering the charge of the court in the light of these general principles, we find that it was permeated by the fundamental error, emphasized by the refusal of the requests, that the jury were left to determine the amount of the benefits to be deducted on the theory that a riparian owner on the improved river would have merely such uncertain and contingent 'privileges' of access to the navigable stream and of constructing docks fronting on the harbor line, as the Government, in the exercise of an absolute control over the navigation of the river, might see fit to allow him, instead of being instructed that he would have a right to such access and the construction and maintenance of such docks until taken away by the Government in the due exercise of its power of control over navigation. And this error was the more serious since the plan of the improvement contemplated that the improved river should become a slip for a docks and industries and recognized the right of a riparian owner to construct docks upon the harbor line; and there was nothing in the evidence indicating any probability that the Government would at any time abrogate or curtail this right in any respect.

The Circuit Court of Appeals, while stating that the trial court had over-emphasized the elements of uncertainty in the rights of riparian owners and the contingent character of these rights, was of opinion that, under all the circumstances, such over-emphasis was not sufficiently prejudicial to call for a reversal of the judgment. With this we cannot agree. The charge was not merely an over-emphasis of the contingent character of the rights of the riparian owners, but in substance an instruction that they had no rights in this respect, and could only obtain uncertain privileges, as a matter of grace. There is an essential difference between a substantial property right which may be enjoyed until taken away in the appropriate exercise of a paramount authority, and an uncertain and [269 U.S. 411, 421] contingent privilege which may not be allowed at all. The failure to observe this distinction went to the root of the charge in reference to the deduction of benefits. And its natural, if not inevitable, effect, was to lead the jury to a lower estimate of the benefits than would have been made under a proper charge.

The present case is not controlled by the provision of section 269 of the Judicial Code, as amended by the Act of February 26, 1919,5 that in an appellate proceeding judgment shall be given after an examination of the entire record, 'without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.' We need not enter upon a discussion of the divergent views which have been expressed in various Circuit Courts of Appeals as to the effect of the Act of 1919. It suffices to say that since the passage of this Act, as well as before, an error which relates, not to merely formal or technical matters, but to the substantial rights of the parties-especially when embodied in the charge to a jury-is to he held a ground for reversal, unless it appears from the whole record that it was harmless and did not prejudice the rights of the complaining party. See Yazoo Railroad v. Mullins, 249 U.S. 531, 533 , 39 S. Ct. 368; Fillippon v. Albion Slate Co., 250 U.S. 76, 82 , 39 S. Ct. 435. In the present case the error in the charge could not but mislead the jury in reference to a material element necessary for its consideration in determining the amounts of the awards; and it cannot be said from the whole record that the substantial rights of the United States were not prejudiced thereby. The judgments of the District Court should therefore have been reversed, and new trials granted.

UNITED STATES v. RIVER ROUGE IMPROVEMENT CO., 269 U.S. 411 (1926)-Jan. 4, 1926.

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